Lopez v. Shinn ( 2021 )

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Hipolito Lopez, No. CV 20-02153-PHX-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 David Shinn, et al., 13 Defendants. 14 15 On November 9, 2020, Plaintiff Hipolito Lopez, who is confined in the Arizona 16 State Prison Complex-Yuma (ASPC-Yuma) in San Luis, Arizona, filed a pro se civil rights 17 Complaint pursuant to 42 U.S.C. § 1983. On November 17, 2020, he filed a First Amended 18 Complaint (Doc. 3) and an Application to Proceed In Forma Pauperis. In a December 3, 19 2020 Order, the Court denied the deficient Application to Proceed and gave Plaintiff thirty 20 days to either pay the filing and administrative fees or file a complete Application to 21 Proceed In Forma Pauperis. On December 28, 2020, Plaintiff filed a document entitled 22 “Asking for extension of time on my Forma Pauperis,” which the Court granted in a 23 January 7, 2021 Order. 24 On January 8, 2021, Plaintiff filed a second Application to Proceed In Forma 25 Pauperis (Doc. 9). The Court will grant the second Application to Proceed, order 26 Defendants Centurion and Jordan to answer the First Amended Complaint, and dismiss 27 Defendants Shinn and Doe without prejudice. 28 . . . . 1 I. Second Application to Proceed In Forma Pauperis and Filing Fee 2 The Court will grant second Plaintiff’s Application to Proceed In Forma Pauperis. 3 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. 4 § 1915(b)(1). The Court will assess an initial partial filing fee of $21.67. The remainder 5 of the fee will be collected monthly in payments of 20% of the previous month’s income 6 credited to Plaintiff’s trust account each time the amount in the account exceeds $10.00. 7 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate 8 government agency to collect and forward the fees according to the statutory formula. 9 II. Statutory Screening of Prisoner Complaints 10 The Court is required to screen complaints brought by prisoners seeking relief 11 against a governmental entity or an officer or an employee of a governmental entity. 28 12 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 13 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 14 relief may be granted, or that seek monetary relief from a defendant who is immune from 15 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 16 A pleading must contain a “short and plain statement of the claim showing that the 17 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 18 not demand detailed factual allegations, “it demands more than an unadorned, the- 19 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 20 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Id. 22 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 23 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 24 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 25 that allows the court to draw the reasonable inference that the defendant is liable for the 26 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 27 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 28 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 1 allegations may be consistent with a constitutional claim, a court must assess whether there 2 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 3 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 4 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 5 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 6 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 7 U.S. 89, 94 (2007) (per curiam)). 8 III. First Amended Complaint 9 In his one-count First Amended Complaint, Plaintiff names as Defendants Arizona 10 Department of Corrections Director David Shinn, Centurion Managed Care (“Centurion”), 11 Centurion Nurse Practitioner Elijah Jordan, and Centurion John or Jane Doe, who 12 “[o]verse[e]s, approves, [or] disapproves providers[’] recommendation[s] for Centuri[o]n 13 Managed Care.” Plaintiff seeks monetary damages and injunctive relief. 14 Plaintiff alleges a violation of the Eighth Amendment prohibition against cruel and 15 unusual punishment regarding his medical care.1 He claims that when he arrived at ASPC- 16 Yuma in January 2019, he submitted a health needs request explaining that he had 17 Epidermolysis Bullosa, which requires “treatment to the hypersensitivity of [his] skin” and, 18 when active, substantially limits “functions of [his] immune system, normal cell growth, 19 digestive, bow[e]l, bladder, neurological, circulatory, walking, lifting and breathing.” 20 Plaintiff contends he saw Defendant Jordan because his “condition had become 21 inflamed[] due to wool blankets.” He states that he told Defendant Jordan that he had “lost 22 [his] approved orthotic shoes”; he needed another “sensitive toothbrush, due to gums that 23 cut and bleed easily, then become very painful to the touch”; and he needed a non-wool 24 blanket because the “non-wool blankets provided had caused [him] to break out in a rash.” 25 26 1 Plaintiff also alleges the conduct described in the First Amended Complaint violates “Parsons v. Ryan.” However, standing alone, remedial orders, such as those 27 entered in Parsons v. Ryan, CV 12-00601-PHX-ROS (D. Ariz.), cannot serve as a substantive basis for a § 1983 claim for damages because such orders do not create “rights, 28 privileges, or immunities secured by the Constitution and laws [of the United States].” Green v. McKaskle, 788 F.2d 1116, 112-243 (5th Cir. 1986). 1 Plaintiff asserts that he explained to Defendant Jordan that he had been provided these 2 items when he was confined in the county jail. 3 Plaintiff alleges Defendant Jordan told him that treatment of his disorder was very 4 expensive and that “due to their spending budget, the cost would be to[o] high, even though 5 [Plaintiff’s] condition seems serious enough and most likely required it.” He claims 6 Defendant Jordan “insisted that [Plaintiff’s] request for [his] special needs be put off” and 7 that Defendant Jordan would “set [Plaintiff] up to see a dermat[o]logist and [would] decide 8 what to do according to [the dermatologist’s] diagnosis.” 9 Plaintiff contends “[m]onths went by” and he continued to submit health needs 10 requests when his condition “got bad.” He claims he was in pain and his skin was red and 11 irritated. Plaintiff asserts that when he saw Defendant Jordan again, he explained that he 12 “was burning on the inside”; it hurt to walk because the shoes he purchased from the 13 commissary were too tight around his feet, even without laces; his feet had become 14 inflamed and red because he has a “deformity from having no toe[]nails”; and he could not 15 brush his teeth because a regular toothbrush cut his gums. Plaintiff claims Defendant 16 Jordan did not examine his mouth or feet, told Plaintiff his appointment had been delayed 17 and that Defendant Jordan would reschedule him, and prescribed ibuprofen for Plaintiff’s 18 pain. Plaintiff alleges that soon after he was prescribed the pain medication, he began 19 having bloody stools. He claims he reported this to the medical department and also 20 explained that his stomach hurt, but he “was put off again by the long wait and delays,” so 21 he continued the ibuprofen. 22 Plaintiff alleges he continued to submit health needs requests, and he was “placed 23 on some type of in-house treatment, as recommended by [Defendant] Jordan.” He asserts 24 the treatments were administered by a registered nurse, but were not working, so the nurse 25 cancelled Plaintiff’s appointments. Plaintiff contends that when he explained to Defendant 26 Jordan “and another working staff” that the treatments were not working, Plaintiff was told 27 to continue the appointments. According to Plaintiff, however, the nurse “beg[a]n to 28 threaten [Plaintiff] with disciplinary [action] for showing up, and stated that [Plaintiff] was 1 no longer on the turnout.” Plaintiff asserts that during this time, his appointment to see a 2 dermatologist “continued to get cancel[l]ed”; he was in “torturous pain” and sat up in bed, 3 during the night, in tears, “all the way into the next day”; he was unable to work out or 4 shower “due to the irritation and burning”; and his ability to walk “beg[a]n to be limited 5 because of [his] toes.” 6 Plaintiff alleges he was denied adequate treatment for his serious medical needs. He 7 contends that when he attempted to utilize the administrative remedy process, “medical 8 stopped responding to [his] attempts to resolve” his issues. Plaintiff claims Defendant 9 Centurion and its medical staff members were “punitive” because they knew of his medical 10 condition and allowed his condition to worsen. He asserts his medical condition has gotten 11 worse, his stomach continues to “give [him] problems” because of the ibuprofen, and it has 12 been more than 550 days since he submitted his first health needs request and he is still 13 waiting to see a dermatologist. Plaintiff also contends Defendant Centurion “has benefitted 14 through the cancellation of [his] treatment plans, by using cost[-]cutting systematic 15 schemes to save money, as [Plaintiff] continue[s] to suffer.” He alleges this constitutes 16 deliberate indifference. 17 IV. Claims for Which an Answer Will be Required Failure to State a Claim 18 Liberally construed, Plaintiff has stated Eighth Amendment deliberate indifference 19 claims against Defendants Centurion and Jordan. The Court will require these Defendants 20 to answer the First Amended Complaint. 21 V. Failure to State a Claim 22 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 23 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 24 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 25 civil rights complaint may not supply essential elements of the claim that were not initially 26 pled. Id. 27 To state a valid claim under § 1983, plaintiffs must allege that they suffered a 28 specific injury as a result of specific conduct of a defendant and show an affirmative link 1 between the injury and the conduct of that defendant. See Rizzo v. Goode, 423 U.S. 362, 2 371-72, 377 (1976). There is no respondeat superior liability under § 1983, and therefore, 3 a defendant’s position as the supervisor of persons who allegedly violated Plaintiff’s 4 constitutional rights does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 5 (1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 6 1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to . . . § 1983 suits, 7 a plaintiff must plead that each Government-official defendant, through the official’s own 8 individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. “A plaintiff must 9 allege facts, not simply conclusions, that show that an individual was personally involved 10 in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 11 1998). 12 Plaintiff has not alleged that Defendants Shinn or Doe personally participated in a 13 deprivation of Plaintiff’s constitutional rights, were aware of a deprivation and failed to 14 act, or formed policies that resulted in Plaintiff’s injuries. Plaintiff has made no allegations 15 at all against either Defendant. Thus, the Court will dismiss without prejudice Defendants 16 Shinn and Doe. 17 VI. Warnings 18 A. Release 19 If Plaintiff is released while this case remains pending, and the filing fee has not 20 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 21 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 22 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 23 result in dismissal of this action. 24 B. Address Changes 25 Plaintiff must file and serve a notice of a change of address in accordance with Rule 26 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 27 relief with a notice of change of address. Failure to comply may result in dismissal of this 28 action. 1 C. Copies 2 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 3 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 4 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 5 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 6 to comply may result in the filing being stricken without further notice to Plaintiff. 7 D. Possible Dismissal 8 If Plaintiff fails to timely comply with every provision of this Order, including these 9 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 10 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 11 to comply with any order of the Court). 12 IT IS ORDERED: 13 (1) Plaintiff’s second Application to Proceed In Forma Pauperis (Doc. 9) is 14 granted. 15 (2) As required by the accompanying Order to the appropriate government 16 agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee 17 of $21.67. 18 (3) Defendants Shinn and Doe are dismissed without prejudice. 19 (4) Defendants Centurion and Jordan must answer the First Amended 20 Complaint. 21 (5) The Clerk of Court must send Plaintiff a service packet including the First 22 Amended Complaint (Doc. 3), this Order, and both summons and request for waiver forms 23 for Defendants Centurion and Jordan. 24 (6) Plaintiff must complete and return the service packet to the Clerk of Court 25 within 21 days of the date of filing of this Order. The United States Marshal will not 26 provide service of process if Plaintiff fails to comply with this Order. 27 (7) If Plaintiff does not either obtain a waiver of service of the summons or 28 complete service of the Summons and First Amended Complaint on a Defendant within 90 1 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever 2 is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); 3 LRCiv 16.2(b)(2)(B)(ii). 4 (8) The United States Marshal must retain the Summons, a copy of the First 5 Amended Complaint, and a copy of this Order for future use. 6 (9) The United States Marshal must notify Defendants of the commencement of 7 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 8 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 9 Order. 10 (10) A Defendant who agrees to waive service of the Summons and First 11 Amended Complaint must return the signed waiver forms to the United States Marshal, not 12 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 13 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 14 personal service. 15 (11) The Marshal must immediately file signed waivers of service of the 16 summons. If a waiver of service of summons is returned as undeliverable or is not returned 17 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 18 the Marshal must: 19 (a) personally serve copies of the Summons, First Amended Complaint, 20 and this Order upon Defendant pursuant to Rule 4(e)(2) and/or (h)(1) of the Federal 21 Rules of Civil Procedure; and 22 (b) within 10 days after personal service is effected, file the return of 23 service for Defendant, along with evidence of the attempt to secure a waiver of 24 service of the summons and of the costs subsequently incurred in effecting service 25 upon Defendant. The costs of service must be enumerated on the return of service 26 form (USM-285) and must include the costs incurred by the Marshal for 27 photocopying additional copies of the Summons, First Amended Complaint, or this 28 Order and for preparing new process receipt and return forms (USM-285), if 1 required. Costs of service will be taxed against the personally served Defendant 2 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 3 ordered by the Court. 4 (12) Defendants Centurion and Jordan must answer the First Amended Complaint 5 | or otherwise respond by appropriate motion within the time provided by the applicable 6| provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 7 (13) Any answer or response must state the specific Defendant by name on whose 8 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 9| does not identify the specific Defendant by name on whose behalf it is filed. 10 (14) This matter is referred to Magistrate Judge Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 12 | authorized under 28 U.S.C. § 636(b)(1). 13 Dated this 29th day of January, 2021. 14 15 a 3 16 7 _ James A. Teil Org Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28